POSTNUPTIAL AGREEMENTS - UW Law School

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WILLIAMS - FINAL 11/29/2007 4:07 PM 838 WISCONSIN LAW REVIEW spouses even credit postnuptial agreements for saving their marriages. 52 This was probably the case in Bratton, where Ms. Bratton was able to feel secure in her choice to put her career on hold, and in Friedman, where Ms. Friedman was able to remain married without subjecting herself to liability for her husband’s medical debt or jeopardizing her rights to her law practice. 53 B. A Critical Overview of Current <strong>Law</strong> Missouri, Virginia, and Wisconsin treat pre- and postnuptial agreements similarly by statute. 54 In the absence of a governing statute, eight state courts evaluate postnuptial agreements under the same rules as prenuptial agreements. 55 For example, the Pennsylvania Supreme Court has held that “the principles applicable to antenuptial agreements are equally applicable to postnuptial agreements.” 56 Sixteen states and Puerto Rico, however, impose greater burdens on postnuptial agreements than they impose on prenuptial agreements. 57 At one extreme, Ohio bars all postnuptial agreements by statute 58 and refuses to enforce postnuptial agreements written in other states if the couple is domiciled in Ohio. 59 Other states have taken less-drastic measures but have nonetheless imposed myriad requirements on postnuptial agreements that they do not impose on prenuptial agreements. Minnesota, for example, requires that each spouse be represented by counsel when forming a postnuptial agreement, but requires merely the opportunity to obtain independent counsel when divorced eleven years later); Stackhouse v. Zaretsky, 2006 PA Super. 108, 3, 900 A.2d 383, 385 (couple modified prenuptial agreement two years into marriage and divorced sixteen years later); In re Marriage of Osborne, No. 50527-1-I, 2003 WL 23020221, at *1–2 (Wash. Ct. App. Dec. 29, 2003) (couple signed postnuptial agreements three and five years into marriage and separated nine years after the last agreement). 52. Marketplace: No Pre-nup? Try a Post-nuptial, supra note 47. 53. Bratton, 136 S.W.3d at 598; In re Marriage of Friedman, 122 Cal. Rptr. 2d 412, 414–15 (Cal. Ct. App. 2002). 54. See infra Appendix. 55. See infra Appendix. 56. Stoner v. Stoner, 819 A.2d 529, 533 n.5 (Pa. 2003) (discussing Simeone v. Simeone, 581 A.2d 162, 166 (Pa. 1990) (rejecting special rules and applying traditional contract law principles to prenuptial agreements)). 57. See infra Appendix. 58. OHIO REV. CODE ANN. § 3103.06 (LexisNexis 2003) (“A husband and wife cannot, by any contract with each other, alter their legal relations, except that they may agree to an immediate separation and make provisions for the support of either of them and their children during the separation.”). 59. See, e.g., Brewsaugh v. Brewsaugh, 491 N.E.2d 748, 751 (Ohio Com. Pl. 1985).
WILLIAMS - FINAL 11/29/2007 4:07 PM 2007:827 Postnuptial Agreements 839 forming a prenuptial agreement. 60 Several states—including Minnesota, New Jersey, and Tennessee—require that the agreement meet standards of substantive fairness both at the time it is signed and at the time it is ultimately enforced, even though they reject this requirement for prenuptial agreements. 61 In California, Minnesota, and Tennessee, the courts reduce the burden on the spouse challenging the postnuptial agreement. 62 California courts impose a rebuttable presumption that all postnuptial agreements are the result of coercion. 63 Minnesota imposes such a burden only when one spouse seeks a divorce within two years of signing the postnuptial agreement. 64 Three states limit the enforceability of postnuptial agreements by applying a stringent interpretation of consideration. In New York, a promise to remain married can be, but is not always, sufficient consideration for a postnuptial agreement. 65 Similarly, in Arkansas and Tennessee, such promises are not sufficient consideration unless the marriage is experiencing significant strife, or a spouse forgoes a specific existing career. 66 Although the legal landscape for prenuptial agreements is quite clear today, many state courts have not squarely addressed the issue of postnuptial agreements. For example, Texas has adopted the UPAA for premarital agreements 67 but has not confronted whether this statute 60. MINN. STAT. ANN. § 519.11 (West 2006). 61. Id.; Bratton v. Bratton, 136 S.W.3d 595, 601 (Tenn. 2004) (“Because of the confidential relationship which exists between husband and wife, postnuptial agreements are . . . subjected to close scrutiny by the courts to ensure that they are fair and equitable.”); Pacelli v. Pacelli, 725 A.2d 56, 58, 60 (N.J. Super. Ct. App. Div. 1999) (holding that a postnuptial agreement must be “fair and equitable when made and when it is sought to be enforced”). 62. See MINN. STAT. ANN. § 519.11 (West 2006); In re Marriage of Friedman, 122 Cal. Rptr. 2d 412, 418 (Cal. Ct. App. 2002); Bratton, 136 S.W.3d at 603 (implying that any threat of divorce to a spouse invalidates a postnuptial agreement because of “the taint of coercion and duress”). 63. Friedman, 122 Cal. Rptr. 2d at 417–18 (rejecting analogy to premarital agreements and analyzing postnuptial agreement under California’s rules governing property transfers between spouses, which impose a rebuttable presumption of coercion) (citing CAL. FAM. CODE § 721(b) (West 2004) and In re Marriage of Haines, 39 Cal. Rptr. 2d 673, 683 (Cal. Ct. App. 1995)). California is unique in that it imposes different burdens on pre- and postnuptial agreements, yet it is not perfectly clear which is more difficult to enforce. 64. MINN. STAT. ANN. § 519.11(1a)(d). 65. Compare Zagari v. Zagari, 746 N.Y.S.2d 235, 238 (N.Y. Sup. Ct. 2002), with Whitmore v. Whitmore, 778 N.Y.S.2d 73, 75 (N.Y. App. Div. 2004). 66. See Simmons v. Simmons, No. CA 06-303, 2007 WL 465889, at *2 (Ark. Ct. App. Feb. 14, 2007); Bratton, 136 S.W.3d at 603 (holding that wife’s promise to forgo a career in dentistry was “vague and illusory” because her plans to become a dentist were too preliminary). 67. TEX. FAM. CODE ANN. §§ 4.001–.010 (Vernon 2006).
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